Appeal from Circuit Court of Champaign County No. 98L268 Honorable John R. DeLaMar, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
We filed our original decision in this case February 20, 2002, and modified it on denial of rehearing on April 16, 2002. Shannon v. Boise Cascade, 328 Ill. App. 3d 621, 766 N.E.2d 1136 (2002) (hereinafter original decision). On October 25, 2002, the supreme court, in the exercise of its supervisory authority, directed us to vacate that judgment and to reconsider in light of Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 776 N.E.2d 151 (2002). Shannon v. Boise Cascade, No. 93933 (October 2, 2002) (nonprecedential supervisory order). We have done so, and again reverse and remand, reinstating our original decision.
In Oliveira, the plaintiff alleged that Amoco had made false representations concerning its premium gasolines, which representations increased consumer demand, allowing Amoco to charge an inflated price, and thereby caused actual damage to a class of purchasers of which plaintiff was a member. Plaintiff did not allege, however, that defendant's advertisements induced him to buy the gasoline or that he was deceived by the ads. Oliveira, 201 Ill. 2d at 140, 776 N.E.2d at 155. Under the Oliveira plaintiff's "'market theory'" of causation, even purchasers of Amoco's gasolines who saw the ads but never believed them, i.e., those who "'knew the truth,'" would have valid claims under section 10a(a) of the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 through 12 (West 1996)). Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164
The supreme court determined that its decision in Oliveira was controlled by its decision in Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 695 N.E.2d 853 (1998). In Zekman, the supreme court had held there was no genuine issue of material fact whether alleged violations of the Act by AT&T proximately caused plaintiff's damage, because plaintiff's testimony demonstrated that he was not deceived by AT&T's actions. Oliveira, 201 Ill. 2d at 154, 776 N.E.2d at 163. The complaint in Oliveira suffered from the same deficiency: "[p]laintiff does not allege that he was, in any manner, deceived by defendant's advertisements. Plaintiff does not allege that he received anything other than what he expected to receive when he purchased defendant's gasoline." Oliveira, 201 Ill. 2d at 154, 776 N.E.2d at 163. "[T]o properly plead the element of proximate causation in a private cause of action for deceptive advertising brought under the Act, a plaintiff must allege that he was, in some manner, deceived." Oliveira, 201 Ill. 2d at 155, 766 N.E.2d at 164.
There are differences between the present case and Oliveira. In the present case, plaintiffs do not simply complain of price; plaintiffs do complain that the product they purchased was defective, that it was something other than what they expected to receive. This is not a case where purchasers who saw the ads but never believed them, purchasers who "knew the truth," would nevertheless have valid claims. As discussed in our original decision, below, a purchaser who buys the home at a discount because of known problems with the siding has not been damaged and would have no claim.
It is sometimes possible to rely on misrepresentations without reading the documents in which such misrepresentations are made. The purchaser of an automobile does not read all the representations made by the manufacturer of the tires; he counts on the automobile manufacturer to do so, but he relies on them just the same. Purchasers of homes employ builders, architects, and engineers to examine the product literature for them; and it is a mistake to say that home purchasers do not rely on that product literature. The fact is noted in Oliveira that plaintiff did not "claim that he saw, heard[,] or read any of the allegedly deceptive advertisements." Oliveira, 201 Ill. 2d at 140, 776 N.E.2d at 155. That fact was important to show whether plaintiff was in fact deceived, whether plaintiff received anything other than what he expected to receive. The Oliveira plaintiff, however, did not care whether his engine performance was improved or whether the environment was benefitted. The only way the Oliveira plaintiff was harmed was by the price. The Oliveira plaintiff did not expect others to review the claims made by gasoline producers on his behalf. Oliveira does not lay down the inflexible rule that plaintiff must have read the ads. Under Oliveira, a plaintiff must allege, not that he read the ads, but only "that he was, in some manner, deceived." (Emphasis added.) Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. Plaintiff does so here.
Justice Turner's dissent suggests that there are problems with the allegations of plaintiffs' complaint, that plaintiff does not "allege that he was, in some manner, deceived." Oliveira, 201 Ill. 2d at 155, 776 N.E.2d at 164. (Plaintiffs allege, however, that defendant's deceptive representations resulted in the use of defendant's siding on their homes, which proximately caused damage to them.) Oliveira was decided on a motion to dismiss directed to the pleadings. The present case, however, is decided on a motion for summary judgment, where it is Boise Cascade's burden to show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Boise Cascade has not shown that plaintiffs were not, in some manner, deceived. The trial court granted summary judgment to Boise Cascade because "it is undisputed that the plaintiffs did not know that the defendant manufactured the siding which was on their homes at the time they purchased the homes." Oliveira does not hold it impossible for plaintiffs to recover under the facts of the present case.
Our original decision follows.
This action is brought under the Act (Ill. Rev. Stat. 1983, ch. 121 1/2, pars. 261 through 272 (now see 815 ILCS 505/1 through 12 (West 2000))). The complaint seeks a determination that the action be maintained as a class action. 735 ILCS 5/2-802(a) (West 2000). The circuit court entered summary judgment in favor of defendant, Boise Cascade. We reverse and remand.
Plaintiffs, Lisa M. Shannon, Timothy J. Shannon, Brian K. Connelly, Susan West, Shapour Arami, Bruce Fischer, and James Torongo, own homes in Du Page County, which were built in 1983 or 1984. Plaintiffs Fischer and Torongo are the original owners of their homes, purchasing them in 1984. Most of the other plaintiffs purchased their homes in 1997, one in 1991. Boise Cascade manufactured an exterior composite wood siding product that was installed on the homes when they were built. Boise Cascade began manufacturing its composite siding about 1960 but has not manufactured, sold, or marketed the siding since 1984. Plaintiffs' second-amended complaint, with amended count I, alleges a violation of section 2 of the Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 262 (now see 815 ILCS 505/2 (West 2000))). The complaint alleges that Boise Cascade's composite siding was subject to rotting, buckling, warping, wick moisture, and general failure. The complaint alleges that Boise Cascade deceptively advertised the composite siding, falsely representing that the siding was "of inherent good quality," "durable," "low maintenance," and "looked and performed comparably to natural wood siding." The complaint also alleges that Boise Cascade fraudulently and deceptively failed to disclose that its siding "performed poorly in the field," with a "high rate of failure," was sensitive to moisture, and required "highly particularized maintenance."
The circuit court entered summary judgment for Boise Cascade, noting that while further discovery may be necessary to determine whether Boise Cascade's marketing activity was false, misleading, or otherwise deceptive, the court could address the factual premise of the motion that "seven of the eight plaintiffs neither saw, heard, or otherwise were aware of the defendant's advertising," which was strictly a legal issue. Although plaintiff Fischer bought his home new, he did not know that his siding was manufactured by Boise Cascade. Plaintiff Torongo knew that the siding had been manufactured by Boise Cascade, but there was no evidence he was aware of any representations by Boise Cascade. The court held that Torongo and Fischer could not rely on the representations of the builder-seller of their homes, as there was no evidence the builder-seller was an agent of Boise Cascade. The circuit court did refuse to enter summary judgment against plaintiff Jack B. Babel, who bought his home new in 1984, knew the siding was manufactured by Boise Cascade, and had read some of Boise Cascade's publications prior to making his purchase. The circuit court rejected Boise Cascade's argument that its representations were only non-actionable "puffing."
The circuit court made a finding under Supreme Court Rule 304(a) that there is no just reason to delay enforcement or appeal. 155 Ill. 2d R. 304(a). Plaintiffs appeal, arguing that the circuit court improperly analyzed the elements of a cause of action under the Act, in particular the concepts of "materiality" and "proximate causation." For purposes of this appeal we assume, as did the circuit court, that Boise Cascade's composite siding was defective, that Boise ...